15 FLRA No. 5
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2302
Union
and
U.S. ARMY ARMOR CENTER,
FT. KNOX, KENTUCKY
Agency
Case No. O-NG-623
DECISION AND ORDER ON NEGOTIABILITY ISSUES
The petition for review in this case comes before the Authority
pursuant to section 7105(a)(2)(D) and (E) of the Federal Service
Labor-Management Relations Statute (the Statute) and concerns the
negotiability of four Union proposals. /1/ Upon careful consideration
of the entire record, including the parties' contentions, the Authority
makes the following determinations. /2/
Union Proposal 1
Positions which are essentially the same shall have the same
critical elements.
This proposal would establish substantive limitations on the Agency's
discretion to identify the critical elements for certain positions. In
this regard it is to the same effect as a proposal which was before the
Authority in National Federation of Federal Employees, Local 1497 and
Headquarters, Lowry Technical Training Center (ATC), Lowry Air Force
Base, Colorado, 6 FLRA 9 (1981). In that case the Authority, relying
upon two previous decisions, /3/ found that a proposal which restricted
management in its designation of critical elements interfered with
agency's rights under section 7106(a)(2) of the Statute to direct
employees and to assign work. The present proposal, by requiring
critical elements to be the same for positions which are "essentially
the same," would prevent management from determining that the critical
elements of particular positions should not be the same because, in
management's judgment, the circumstances relating to work performance in
them warrants the establishment of different critical elements. For the
reasons fully set forth in Saint Lawrence Seaway Development Corporation
and Bureau of the Public Debt, Union Proposal 1 is outside the duty to
bargain. /4/
Union Proposal 2
The Union shall be allowed to have an observer present in the
development or revision of all measures of performance.
Determinations as to the content of performance standards are an
exercise of management's rights under section 7106(a)(2) to direct
employees and to assign work. Bureau of the Public Debt, see n. 3,
supra. The Authority has found that the right of management officials
to take actions under section 7106(a) of the Statute encompasses not
only the right to act but also the right to discuss and deliberate on
the relevant factors upon which decisions concerning such actions are to
be based. See National Federation of Federal Employees, Local 1167 and
Department of the Air Force, Headquarters, 31st Combat Support Group
(TAC), Homestead Air Force Base, Florida, 6 FLRA 574 (1981) (Union
Proposals 1 and 3), aff'd sub nom. NFFE, Local 1167 v. FLRA, 681 F.2d
886 (D.C. Cir. 1982). Union Proposal 2 would require that the Union be
present at management meetings relating to the development or revision
of performance standards. The Union contends that the role of the
observer would be a purely passive one and that, given this
circumstance, the proposal would not entail active participation in
internal management deliberations. Contrary to the Union's contention
the Authority concludes that such presence, regardless of whether active
or passive in nature, would interfere with the Agency's right to freely
engage in internal discussion and deliberation prior to making decisions
to take actions which come within the purview of section 7106(a) of the
Statute. Hence, with respect to the proposal in this case, it would
interfere with the decision-making process with respect to the exercise
of the Agency's right to direct employees and to assign work and,
therefore, is outside the duty to bargain.
Union Proposal 3
Production studies or goals shall not be translated into
performance standards, e.g. work units per person unless the
following conditions are fully satisfied:
(1) The work performed is repetitive and capable of being done
uniformly by all workers in the unit being measured.
(2) Job content is constant throughout the appraisal period.
(3) The method of operation, service and work units produced is
capable of being objectively, reliably, validly and accurately
measured.
(4) The work units to be measured are equivalent.
The proposal is substantively identical to Union Proposal 2 in
American Federation of Government Employees, AFL-CIO, Local 1708 and
Military Ocean Terminal, Sunny Point, Southport, North Carolina, 15 FLRA
No. 1 (1984). For the reasons expressed therein as well as in the cases
relied upon therein, the Authority finds that this proposal would
interfere with the Agency's right to direct employees and to assign work
and, therefore, is outside the duty to bargain.
Union Proposal 4
Appendix (UB) - Performance Rating Levels. The range of
overall performance shall be one of the four ratings defined
below. The overall rating shall be arrived at by considering the
total performance of the employee by using only the rating of
elements as prescribed in Section 4B(1) above.
Outstanding - Performance which meets performance standards for
all critical elements and exceeds standards for a majority of
major elements.
Satisfactory - Performance which needs improvement in one or
more critical elements. Performance in relation to these elements
of such quality it would be expected of a proven competent
employee.
Marginal - Performance which needs improvement in one or more
critical elements. Performance in relation to performance
standards is less than expected of a competent employee.
Unsatisfactory - Performance which fails to meet performance
standards for one or more critical elements. Performance is
clearly unacceptable and corrective action is needed.
As explained by the Union, this proposal defines the level of
performance required to achieve a particular summary rating. Thus, this
proposal is to the same effect as a portion of the proposal in American
Federation of State, County and Municipal Employees, AFL-CIO, Council 26
and U.S. Department of Justice, 13 FLRA No. 96 (1984), which the
Authority held to be outside the duty to bargain because it interfered
with management's rights under section 7106(a)(2) of the Statute to
direct employees in the agency and to assign work. Based on Department
of Justice and for the reasons fully stated therein, it is concluded
that the instant proposal is outside the duty to bargain. /5/
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Union's petition for review be, and
it hereby is, dismissed.
Issued, Washington, D.C., June 6, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ In its response to the petition for review, the Agency withdrew
its allegation that a fifth proposal concerned with studies bearing on
performance standards was nonnegotiable. Accordingly, there is no
longer an issue as to whether the proposal is within the duty to
bargain.
/2/ Contrary to the Agency's assertion that the petition was untimely
filed, the Authority finds that the petition was timely submitted with
respect to the Union's written request for a written allegation of
nonnegotiability. In this regard, under section 2424.3 of the
Authority's Rules and Regulations, a union has the right to request in
writing that an agency serve it with such written allegation. American
Federation of Government Employees, AFL-CIO, Local 3385 and Federal Home
Loan Bank Board, District 7, Chicago, Illinois, 7 FLRA 398 (1981).
/3/ American Federation of Government Employees, AFL-CIO, Local 1968
and Department of Transportation, Saint Lawrence Seaway Development
Corporation, Massena, New York, 5 FLRA 70 (1981), aff'd sub nom. AFGE,
Local 1968 v. FLRA, 691 F.2d 565 (D.C. Cir. 1981), cert. denied, 103
S.Ct. 2085 (1983), and National Treasury Employees Union and Department
of the Treasury, Bureau of the Public Debt, 3 FLRA 769 (1980), aff'd sub
nom. NTEU v. FLRA, 691 F.2d 553 (D.C. Cir. 1982).
/4/ Cf. American Federation of Government Employees, AFL-CIO, Local
32 and Office of Personnel Management, Washington, D.C., 3 FLRA 784
(1980) (Union Proposal 5) wherein the Authority found that, insofar as a
proposal would establish a general, nonquantitative requirement by which
the application of performance standards could be evaluated as opposed
to dictating the actual content of the performance standards, such
proposal was negotiable.
/5/ In view of this determination, the Authority finds it unnecessary
to address the Agency's additional contentions regarding the
negotiability of this proposal.